Freedom From Religion Foundation, Inc. v. The County of Lehigh, 080819 FED3, 17-3581

Docket Nº:17-3581
Opinion Judge:HARDIMAN, CIRCUIT JUDGE.
Party Name:FREEDOM FROM RELIGION FOUNDATION, INC.; STEPHEN MEHOLIC; DAVID SIMPSON; JOHN BERRY; CANDACE WINKLER v. THE COUNTY OF LEHIGH, Appellant
Attorney:Marcus B. Schneider [Argued] Steele Schneider Attorneys for all Plaintiff-Appellees Patrick C. Elliott Attorney for individual Plaintiff-Appellees Eric S. Baxter [Argued] Joseph C. Davis Diana M. Verm Thomas M. Caffrey Attorneys for Defendant-Appellant Richard B. Katskee Americans United for Sepa...
Judge Panel:Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.
Case Date:August 08, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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FREEDOM FROM RELIGION FOUNDATION, INC.; STEPHEN MEHOLIC; DAVID SIMPSON; JOHN BERRY; CANDACE WINKLER

v.

THE COUNTY OF LEHIGH, Appellant

No. 17-3581

United States Court of Appeals, Third Circuit

August 8, 2019

Argued September 7, 2018

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5:16-cv-04504) District Judge: Honorable Edward G. Smith

Marcus B. Schneider [Argued] Steele Schneider Attorneys for all Plaintiff-Appellees

Patrick C. Elliott Attorney for individual Plaintiff-Appellees

Eric S. Baxter [Argued] Joseph C. Davis Diana M. Verm Thomas M. Caffrey Attorneys for Defendant-Appellant

Richard B. Katskee Americans United for Separation of Church & State Attorney for Amici Religious and Civil-Liberties Organizations in Support of Appellees

David A. Cortman Alliance Defending Freedom Samuel S. Sadeghi Morgan Lewis & Bockius Jonathan A. Scruggs Kristen K. Waggoner Attorneys for Amicus Alliance Defending Freedom in Support of Appellant

Michael D. Berry Attorney for Amicus First Liberty Institute in Support of Appellant

Gregory Dolin Attorney for Amicus Jews for Religious Liberty in Support of Appellant

Gregory L. Chafuen Weil Gotshal & Manges Thomas R. Guy Weil Gotshal & Manges Randall L. Wenger Attorneys for Amici States of Alabama, Arizona, Arkansas, Colorado, Indiana, Kansas, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia in Support of Appellant

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges.

OPINION

HARDIMAN, CIRCUIT JUDGE.

For almost 75 years, the official seal of Lehigh County, Pennsylvania has included a Latin cross surrounded by nearly a dozen secular symbols of historical, patriotic, cultural, and economic significance to the community. The question presented is whether that seal violates the Establishment Clause of the First Amendment to the United States Constitution. Consistent with the Supreme Court's recent decision in American Legion v. American Humanist Association, 139 S.Ct. 2067 (2019), we hold it does not.

I

In December 1944, the Lehigh County Board of Commissioners unanimously adopted the seal at issue and agreed to purchase a flag depicting it. Although the record contains no evidence of the three Commissioners' contemporaneous understandings of the imagery used in the seal, Commissioner Harry D. Hertzog, who designed and voted for the seal, explained two years later: "in center of Shield appears the huge cross in canary-yellow signifying Christianity and the God-fearing people which are the foundation and backbone of our County." App. 99. This appears to be the only available explanation of the cross's initial inclusion in the seal. The cross is partially obscured by a depiction of the Lehigh County Courthouse and surrounded by many other symbols representing the County's history, patriotism, culture, and economy.1 See infra Appendix A.

The seal appears on County-owned property and on various government documents, as well as on the County's website, so Lehigh County residents encounter it regularly. The Freedom from Religion Foundation (FFRF) wrote to the County in November 2014 to complain about the seal and request its use be discontinued-the first such complaint in the seal's history. After a series of meetings and attempts to gather information about the seal, the Board of Commissioners voted unanimously to retain the seal in March 2015. Responding to FFRF by letter, the County stated the cross's "presence . . . on the seal among all the other items of historical significance has the secular purpose of recognizing the history of the County" and "honor[s] the original settlers of Lehigh County who were Christian." App. 310. The present-day Board did not know why the 1944 Commissioners decided to include the cross, and interpreted Hertzog's 1946 statement to mean the cross-like other symbols on the seal-represented "elements that were important to the early settlers" of Lehigh County. App. 266- 67.

FFRF and four of its members who reside in Lehigh County filed this lawsuit in 2016. After both parties moved for summary judgment, the District Court denied the County's motion and granted FFRF's. It found the seal unconstitutional under the Lemon test as modified by the endorsement test, after asking whether the cross lacked a secular purpose and whether a reasonable observer would perceive it as an endorsement of religion. Freedom from Religion Found., Inc. v. Cty. of Lehigh, 2017 WL 4310247, at *9-10 (E.D. Pa. Sept. 28, 2017) (citing Lemon v. Kurtzman, 403 U.S. 602 (1971)). The District Court explained in dicta that although FFRF's claim would fail under the Establishment Clause as originally understood, the Court was obliged to apply the Lemon-endorsement test despite its shortcomings. The County timely appealed, but after oral argument we held the case pending resolution of American Legion and then asked the parties to provide supplemental briefing based on that decision. We now hold that Lemon does not apply to "religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies" like the seal. 139 S.Ct. at 2081 n.16 (plurality opinion). As the Supreme Court held in American Legion, such longstanding symbols benefit from "a strong presumption of constitutionality." Id. at 2085. And because the thin record in this case does not overcome that presumption, we will reverse the District Court's order.

II

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We review a party's standing to sue de novo. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 266 (3d Cir. 2014). The same is true of our review of the District Court's summary judgment. Id. at 265.

III

In the Establishment Clause context, "a community member . . . may establish standing by showing direct, unwelcome contact" with a government display alleged to violate the Constitution. Freedom from Religion Found., Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 479 (3d Cir...

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